Pursuant to section 20 and 28 of the Public Works Act
1981, and to a delegation from the Minister for Land Information, Ronald Alistair Jolly, Land Information
New Zealand, declares that, pursuant to an agreement to that effect having been entered into, a covenant is acquired
over the land described in the First Schedule to this notice (being appurtenant to the land described in the Second Schedule to this notice) on the terms described in the
Third Schedule to this notice and is vested in the Crown (called "the Crown") on the date of publication hereof in the New Zealand Gazette.
North Auckland Land District-Auckland
First Schedule
Land Over Which the Covenant is Acquired
Part Section 284 SO 434446, marked "CF" on SO 434446 ("the Tunnel Protection Land") (part Computer Freehold Register 594341).
Second Schedule
Appurtenant land
Area
m2 Description
295 Section 1084 on SO 434446 (Computer Freehold Register 567831).
Third Schedule
Terms of the Covenant
Definitions
"Tunnel" means the land acquired for road in Gazette Notice 8893641.1; shown as Section 84 on SO 434446.
"State Highway" means Western Ring Route Roads of National Significance, State Highway 20, Auckland.
"NZTA" means the NZ Transport Agency.
"Servient Land" means Section 284 SO 434446, contained in Computer Freehold Register 594341.
Existing Statutory Restrictions
1. The registered proprietors acknowledge and accept that certain activities above the State Highway and the
Tunnel may affect the integrity of the Tunnel and
the safety of the State Highway and users of it;
Designation pursuant to the Resource Management
Act 1991
1.1 Section 176 of the Resource Management Act 1991 provides that no person may, without NZTA’s prior written consent, do anything in relation to any land subject to the designation, which would prevent or hinder the State Highway or the Tunnel;
Public Works Act 1981
1.2 Section 237 of the Public Works Act 1981 provides that, except with the prior written consent of NZTA, no person may excavate or otherwise interfere with any land in the vicinity of the State Highway or the Tunnel if the excavation or interference is likely
to produce, directly or indirectly, a subsidence
on to the State Highway or the Tunnel or
a subsidence of the State Highway or the Tunnel
or of the soil under it. A breach of that section is an offence and also gives rise to civil liability for all damage caused to the State Highway or the Tunnel arising from that breach.
Government Roading Powers Act 1989
1.3 Section 78 of the Government Roading Powers Act 1989 provides that, except with the prior written consent of NZTA, no person may place any wire, cable, pipe, tower, pole, or other structure or thing on, over, or under any motorway, or on, over, or under any land that has been taken, purchased, set apart or acquired for the purpose of constructing a motorway.
Restrictions on excavations
2. For better compliance with the existing restrictions recorded in clause 1.1-1.3 of this schedule and the better protection of the State Highway and the Tunnel, the registered proprietor shall not:
2.1 Excavate or otherwise disturb the soil in any manner whatsoever in the Tunnel Protection Land without the prior written consent of the Crown on each occasion and subject to strict compliance with
such conditions as the Crown may impose on
any such consent;
2.2 Suffer, allow, or permit (including without limitation giving any consents or approvals under the Resource Management Act 1991 or otherwise) any other person to take any action in respect of the Servient Land that would breach clause 2.1;
2.3 Fund, encourage or otherwise be involved in, any act, matter or thing in respect of the Servient Land that would, if carried out by the registered proprietor itself, breach clause 2.1.
3. For the avoidance of doubt, clause 2.1 applies to any activity, whether that activity commences on the surface of the Servient Land or any other property.
4. The Crown’s consent under clause 2.1 may be given or withheld, or made subject to conditions, at the Crown’s sole and absolute discretion. Consent will be required on each occasion notwithstanding any prior consent or approval obtained for the like purpose on a prior occasion.
5. If NZTA gives written permission to any activities that would otherwise breach clause 2.1, then the Crown will consent under clause 2.1 to those activities.
6. For the avoidance of doubt, the grantor does not require the consent of the Crown to carry out any activities that do not extend into the Tunnel Protection Land.
7. The registered proprietor shall:
7.1 Impose on every occupier of the Servient Land or holder of any unregistered interest in the Servient Land an obligation to observe and perform the terms of this covenant.
7.2 Pay all legal costs and disbursements in respect of the performance and observance by the grantor
of the terms of this covenant including legal costs on a solicitor/client basis and to otherwise indemnify the Crown against any claims, loss and expense
of whatever kind incurred by the Crown as a consequence of the grantor failing to comply with the provisions of this covenant.
8. This covenant shall be binding on all transferees, tenants, lessees, mortgagees, charge-holders and their respective successors in title and assigns of any estate or interest in the Servient Land.
Dated at Wellington this 27th day of September 2012.
R. A. JOLLY, for the Minister for Land Information.
(LINZ CPC/2010/15422)